Ngoje v Chief Executive Officer, National Irrigation Authority & another (Environment and Land Judicial Review Case E001 of 2026) [2026] KEELC 3877 (KLR)
The bottom line
#The court struck out a bid to force the National Irrigation Authority to pay costs because the winner never properly served the required documents on the Attorney General.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the firm of G & A Advocates LLP was properly on record for the Respondents so that the documents it filed were validly on the record
- 2.Whether the Applicant satisfied the statutory conditions for the grant of an order of mandamus under Section 21 of the Government Proceedings Act
- 3.Whether the constitutional and declaratory reliefs sought, including compensatory damages, are available in judicial review proceedings
Key legal issues
#Whether the Respondents' counsel was properly on record
The firm of G & A Advocates LLP was not properly on record as there was no Notice of Appointment of Advocates or Appearance; its filings were struck out and deemed never filed
Order 9 Rule 1 of the Civil Procedure Rules confines right of audience to a party in person, a recognised agent, or an advocate duly appointed. Appointment must be formalised through filing of the requisite documentation. The court found no Notice of Appointment or Appearance on record for the firm, rendering its documents invalid and leaving the Applicant's depositions uncontroverted.
Whether the Applicant complied with Section 21 of the Government Proceedings Act as a prerequisite to mandamus
The Applicant did not prove service of the Certificate of Order against the Government and Certificate of Costs on the Honourable Attorney General; the statutory duty under Section 21(3) never crystallised and the application was premature
Section 21 prescribes a mandatory procedure: the successful litigant must obtain a Certificate of Order or Certificate of Costs and serve it on the Attorney General before the accounting officer's statutory duty arises. The Applicant's email evidence lacked delivery receipts as required by Order 5 Rule 22B(2) and (4) of the Civil Procedure Rules, and no affidavit of service was filed. Service is not a mere technicality but a constitutional component of fair hearing.
Whether constitutional declarations and compensatory damages are available in judicial review proceedings
They are not; such reliefs transcend judicial review and must be pursued through a constitutional petition, and the Applicant's pleading also failed the Anarita Karimi Njeru specificity requirement
Judicial review interrogates legality, procedural propriety and rationality of administrative action, while constitutional litigation determines alleged violations of rights and grants remedies flowing therefrom. The delay in payment of taxed costs does not automatically translate into a constitutional violation, and constitutional avoidance applies where a matter may be decided on another basis. The claim also lacked the precision required by Anarita Karimi Njeru and Mumo Matemu.
Legal principles established
#- Service of the Certificate of Order against the Government on the Honourable Attorney General is a condition precedent that must be strictly complied with before the statutory duty under Section 21(3) of the Government Proceedings Act crystallises and mandamus can issue
- Proof of service on the Attorney General is not a technicality that can be overlooked under Article 159(2)(d) of the Constitution; without it the statutory duty sought to be enforced has not arisen
- Declarations of constitutional violation and compensatory damages are not available in judicial review proceedings and must be sought through a constitutional petition
- Failure to settle a decree against a government entity does not automatically amount to a constitutional violation; a litigant must first demonstrate strict compliance with the prescribed statutory enforcement procedure
- An advocate must demonstrate due appointment by filing the requisite documentation before having right of audience for a party
Court orders
#- 1.The documents purportedly filed on behalf of the Respondents by the firm of G & A Advocates LLP, being the Grounds of Opposition and submissions, are struck out and deemed as though never filed
- 2.The Originating Motion dated 30th January 2026 is struck out
- 3.Each party shall bear their own costs in the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 23(2) and (3), 47(1) and (2), 48, 50(1) and 159(2)(d) of the Constitution; Section 13(5) of the Environment and Land Court Act; Section 7 of the Fair Administrative Action Act; Sections 21(3) and (4) of the Government Proceedings Act; Rule 11 of the Fair Administrative Action Rules 2024
Relief refused
#Order of mandamus compelling the 1st Respondent to pay Kshs. 356,675/= in costs from the Land Acquisition Tribunal decree
The Applicant failed to demonstrate service of the Certificate of Order against the Government and Certificate of Costs upon the Honourable Attorney General as required by Section 21 of the Government Proceedings Act, hence no statutory duty capable of enforcement through mandamus had crystallised
Declarations of violation of Articles 10, 47(1), 47(2) and 232 of the Constitution and Sections 4(2) and (3) of the Fair Administrative Action Act and Section 21(3) of the Government Proceedings Act
Such declarations of constitutional violations are not available in judicial review proceedings and ought to be pursued through a constitutional petition; the claim also lacked the specificity and precision required by Anarita Karimi Njeru and Mumo Matemu
Compensatory damages for alleged violation of Article 47 rights
Constitutional remedies of compensation cannot be granted within judicial review proceedings; further, the alleged violations collapsed because the Applicant did not comply with the statutory enforcement procedure
Interest on the costs at 14% per annum from 16th April 2025
The application was struck out as incompetent and premature for failure to comply with the mandatory service requirements of Section 21 of the Government Proceedings Act
Costs
Each party shall bear their own costs in the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the Originating Motion dated 30th January 2026 is hereby struck out.
Thus, the application having been deemed as not having been properly opposed, then each party shall bear their own costs in the application.
It is only upon such service that the statutory obligation imposed under section 21(3) crystallizes and becomes enforceable against the accounting officer concerned.
The requirement of service is not a mere procedural technicality capable of being overlooked under Article 159(2)(d) of the Constitution.
Judicial review primarily interrogates the legality, procedural propriety and rationality of administrative action, whereas constitutional litigation concerns the determination of alleged violations of constitutional rights and the grant of remedies flowing therefrom.
Accordingly, the documents they purportedly filed on behalf of the Respondents are hereby struck out: they are be deemed as though they were never filed, in the first place.
Issues in the judgment
#Inconsistent description of the underlying tribunal dispute number: the Originating Motion refers to 'LAT Dispute No. E008 of 2024' while the submissions refer to 'TRLAP No. E008 of 2024', and annexures reference 'Nairobi Trilap No. E008'
Inconsistent gender reference to the Applicant in the judgment
Inconsistent dates in the annexture descriptions: EON 9 is described as an email dated 30th May 2026 while the forwarding letter it is said to attach is dated 30th May 2025
Respondents' Grounds of Opposition are dated 26th May 2026, which precedes the alleged filing dates but is close to the judgment date; the date appears anomalous relative to the Originating Motion timeline
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngoje v Chief Executive Officer, National Irrigation Authority & another (Environment and Land Judicial Review Case E001 of 2026) [2026] KEELC 3877 (KLR)", Case Analysis (2026). Judicial Review Application (Originating Motion dated 30th January 2026); LAT Dispute No. E008 of 2024 referred. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3877/eng@2026-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.